Why does the anti-defection law not apply to Nitish Kumar?

Welcome to The India Fix by Shoaib Daniyal, a newsletter on Indian politics. As always, if you’ve been sent this newsletter and like it, to get it in your inbox every week, sign up here (click on “follow”).

Have feedback, interesting links or think I am wrong? Write to me: theindiafix@scroll.in

In 1967, a legislator in Haryana named Gaya Lal changed parties thrice within a fortnight. A pun on his name birthed a new idiom that soon became one of Indian politics’ most enduring contributions to the Hindi language: “Aya Ram, Gaya Ram”. Literally, a person who comes and goes, it was used to refer to the act of politicians frequently changing parties.

Lal was not alone. Defections saw a sharp increase since the mid-1960s as the Congress party started to lose its hegemony and Indian politics became more multipolar. In 1985, in a bid to stem defections, the Rajiv Gandhi government at the Centre amended the Constitution, passing what is popularly known as the Anti-Defection Law. This made the act of floor crossing by a legislator illegal.

Now, not only could an MLA or MP not change parties, they could not even vote independently – it was all to be done on the orders of their party. The law was aimed at making Indian politics more principled by curbing the influence of money and power on the actions of politicians.

Did the law make Indian politics more principled?

On Sunday, Bihar Chief Minister Nitish Kumar jumped ship, ditching his alliance partners the Rashtriya Janata Dal and the Congress and allying with the Bharatiya Janata Party.

This was the fourth time in the past decade that Kumar had switched sides. In 2013, he had left the BJP after it nominated Narendra Modi as its prime ministerial candidate. Two years later, he had allied with his traditional foe, Lalu Yadav, to win a historic election and return as chief minister. However, by 2017, Kumar went back to the BJP. By 2022, the itch to defect struck Kumar and he broke with the BJP again. This, of course, lasted all of two years and by the start of 2024, he was back with the BJP.

Double standards

If Gaya Lal’s shenanigans necessitated an Anti-Defection Law, why then, nearly four decades after the legislation was passed, do we still have “aya Nitish, gaya Nitish”? Lal was small fry. His defection affected one assembly constituency. Nitish Kumar’s move affects an entire state of more than 13 crore people. Why does the law not encompass leaders such as him?

Apart from curbing the influence of money, the other argument for the Anti-Defection Law was that voters vote largely on the basis of a party symbol. This is why a legislator must listen to the order of the party while voting. By itself this was an unusual claim backed by little data. Especially given the fact that voters were, quite literally, voting for a legislator – as is the foundation of a Parliamentary system.

However, if we take this claim at face value, again: why does this argument not apply to Nitish Kumar? If he has fought elections in a pre-poll coalition, he is breaking the voters’ mandate by switching sides. It is quite probable, for example, that a voter who voted for a Janata Dal (United) candidate was a BJP or RJD supporter. So what happens to her voice when Nitish Kumar flip-flops?

That the Anti-Defection Law penalises a future Gaya Lal but not a Nitish Kumar is an important pointer to what actually drives the law. While it purports to curb the politics of money and power, what the Anti-Defection Law actually does is push this sort of corruption one level upwards: from the level of the MP and MLA to the party high command.

Party leaders are free to openly pursue the politics of power and money. Nitish Kumar could switch as many times as he wants in order to be chief minister but his actions are legal, as are those of the BJP and RJD which also indulge in this game of musical chairs over mandates.

In effect then, the Anti-Defection Law has weakened grassroots leaders and strengthened a small number of big leaders who head parties. In fact, the law is a significant reason for the strengthening of personality-based politics in India, where politics – from voting to governance – is concentrated in the personality of a few big leaders such as Narendra Modi or Mamata Banerjee. Grassroots politicians are increasingly becoming irrelevant as voting now largely takes place on the basis of these prominent names.

Worst of both worlds

In effect, this is a sort of Presidential system where voters are now voting directly for an executive rather than, as is the norm in a Parliamentary system, voting for legislators who then elect a government.

However, a Presidential system has many checks – an independent legislature, for example, that often places barriers to the executive. However, on this, India is still solidly Parliamentary: the executive still controls the legislature. The end result is a worst-of-both-worlds: a politics of centralised personality with no checks and balances on these powerful leaders.

The long-term effect of this on Indian democracy is, of course, troubling. Weakening grassroots politics is a weakening of democracy itself. Voting is a sort of feedback loop, a way for citizens to influence the government. But it is unclear what happens when the constituency is as large as, say, Bihar or, in Modi’s case, the Indian Union itself.

Hyper-centralisation means large numbers of issues will simply not be big enough for one, centralised leader to look at. This is visible in the way livelihood concerns such as inflation, which could bring down governments till a few decades back, are now rarely electoral issues in India.